EBQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] FedCFamC2G 567

Federal Circuit and Family Court of Australia

(DIVISION 2)

EBQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 567

File number(s):	MLG 1871 of 2021
Judgment of:	JUDGE RILEY
Date of judgment:	5 July 2022
Catchwords:	MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise Visa – Ahwazi male from Iran – whether the Authority misunderstood the applicant’s claims – whether the Authority considered the applicant’s claims – whether there was a material misinterpretation of the applicant’s evidence before the delegate.
Legislation:	Migration Act 1958 ss.46A, 473DD, 473EA(4).
Cases cited:	CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; (2019) 375 ALR 47; [2019] HCA 50.
Division:	Division 2 General Federal Law
Number of paragraphs:	43
Date of hearing:	5 July 2022
Place:	Melbourne
Counsel for the Applicant:	In person
Solicitor for the Applicant:	None
Counsel for the First Respondent:	Johnathan Barrington
Solicitor for the First Respondent:	Mills Oakley
Counsel for the Second Respondent:	No appearance
Solicitor for the Second Respondent:	Mills Oakley

ORDERS

MLG 1871 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

EBQ20
Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent

IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent

order made by:	JUDGE RILEY
DATE OF ORDER:	5 JULY 2022

THE COURT ORDERS THAT:

1.The application filed on 2 August 2019 be dismissed.

2.The applicant pay the Minister’s costs in the proceeding fixed in the sum of $7,853.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

JUDGE RILEY:

1. This is an application to review a decision of the Immigration Assessment Authority. The applicant is a citizen of Iran. His ethnicity is Ahwazi Arab. He arrived in Australia as an unauthorised maritime arrival on 14 January 2013.

2. The bar under s.46A of the Migration Act 1958 (“the Act”) was lifted. On 20 January 2017 the applicant applied for a Safe Haven Enterprise Visa. The applicant claimed that he had been discriminated against as an Ahwazi Arab. He claimed that his father had been a member of an Ahwazi political group when he, the father, was at university. The applicant claimed that he, the applicant, had been involved in strikes in Iran in 2008 and 2013. He claimed that he had a leadership role in relation to the 2013 strike. He claimed that he became of interest to the Iranian authorities because of his leadership role in the 2013 strike. He claimed that he fled Iran for that reason.

3. The applicant claimed to have used a fake passport to leave Iran. He said that he had studied the Bahá'í faith while in Australia. He said he had a friend who was involved with the Ahwazi community in Adelaide. He claimed that he would face persecution in Iran because of his previous involvement with strike actions, as a failed asylum seeker and on the basis of his imputed political opinion of supporting the Ahwazi cause.

4. A delegate of the Minister refused the visa application on 16 August 2019. On 26 September 2019, the Authority affirmed the delegate’s decision. About a year later, the applicant sought an extension of time to file proceedings in this court. On 25 May 2021, the matter was remitted to the Authority by consent. The error identified by the parties as justifying the remittal concerned the question of whether the Authority had misapplied s.473DD of the Act in considering whether to take into account new information submitted by the applicant as part of his first submission.

5. The matter was reconsidered by the Authority differently constituted. On 19 July 2021, the Authority again affirmed the delegate’s decision. 

6. The applicant applied for review by this court on 2 August 2021. The matter came before Judge Davis on 6 December 2021. The final hearing was conducted on that date. His Honour reserved his decision. Before handing down a decision in this matter, Judge Davis resigned his commission. The Chief Judge conducted a directions hearing on 24 May 2022. His Honour listed the matter for final hearing before me today. His Honour gave the parties the opportunity to file further submissions. The orders also have a notation that the transcript of the hearing before Judge Davis on 6 December 2021 would be part of the material before the court. His Honour said that the parties would be given a copy of the transcript at least 14 days before the hearing. The applicant confirmed orally today that he had received the transcript about two weeks ago. The Chief Judge asked the parties, I gather, whether they would be content for the court to determine the matter on the basis of the papers, including the transcript. However, the applicant said he would prefer a further hearing.

7. When the matter came on for hearing today, the applicant was not represented. He largely relied on what he had said before Judge Davis.

   GROUND 1:  

8. Ground 1 in the application is as follows:

   The information I received was not true our [sic] factual.

9. The applicant said in relation to this ground that he wished to rely on the same points as he had explained to Judge Davis on 6 December 2021.

10. The applicant’s first point was that the Authority said in the first line of its decision that the applicant is an Arab Bahá'í and entered Australia in 2017. That is not correct. The Authority’s decision says in paragraph 1 that the applicant claims to be an Ahwazi Arab. He arrived in Australia in July 2013 and made his Safe Haven Enterprise Visa application in 2017. This point is simply based on a misunderstanding of the Authority’s reasons.

11. The next point made by the applicant was:

    They didn’t consider that events happened in two different places.

12. Again, that is a misunderstanding of the Authority’s reasons. Paragraphs 30 and 31 of the Authority’s reasons are as follows: 

    [30] The applicant's primary claim relates to his involvement with what he loosely describes as a labour union, which included two protests he took part in to secure owed wages for employees. In his SHEV statement, the applicant claims that he joined the labour union in around 2007 because through it he could fight for employees' rights. He states that as a member of the union, which he describes was run by volunteers because unions were not accepted by the government, he was able to convey information about wages, risks of the job and conditions of employment, to his co-workers. He also indicates that the union did not have an official office and that the leader of the union had a shop in the city, where they met if they wanted to hold a meeting. He claims that while working for Sakhtman Nasab, which the information in his SHEV application indicates was in Abadan and that he worked for between June 2008 and June 2009, the employees went on a strike because the company failed to pay their wages. The applicant and 19 others were arrested by the company security, taken to police station and detained for two days. He was not formally charged, nor did he receive any formal letter "regarding what we have done". The applicant claims that as a result of this, he was blacklisted, could not get any jobs with oil refineries in Abadan, and had to move to Kerman where he obtained a job with a copper mine by the name of Pars Hassas, the name of which was removed in 2010 and the applicant directly worked for Tam Iran Khodo, the second biggest copper mine in the world.

    [31]The applicant claims that before Nowrooz of 2013, Tam Iran Khodro did not pay its employees two months of wages and denied them their bonus. This continued for another three months after Nowrooz, prompting complaints to the manager. The applicant claims that because he was working as a supervisor of some electricians and as the representative for all staff, he had to act. He tried talking to a manager, but nothing happened, they threatened them with taking their access cards and ordered them to go back to work. The applicant states that in May 2013, about 60-70 employees went on a strike for three days. The company sent their security telling employees to scatter and go back to work. They scattered for a while but then resumed the strike. The applicant claims that after three days of strike, he did not return to his hostel and went to stay with a friend in the area. He received a call from his roommate that the company security had come looking for him, searched his belongings and confiscated his laptop and some of his books. The applicant was worried and did not return to his room at the hostel and heard from a friend that people in charge had made a deal with the staff. The applicant claims that "non-native staff" like the applicant were technicians who were not from Kerman but other places in Iran, and that although the company offered to pay their wages and bonuses, they declined the offer.

13. Those paragraphs show that the Authority well understood that the applicant claimed that one series of events occurred in Abadan and a second series of events occurred in Kerman.

14. The applicant’s next point was that the Authority said he was of a Bahá'í faith when he had said only that he was researching that faith. Again, the applicant has misunderstood the Authority’s reasons. Paragraph 46 of the Authority’s reasons is as follows:

    I accept that the applicant befriended and engaged with the Baha'i community and may have attended some Baha'i community events after his arrival in Australia. I also accept that, after arrival in Australia without his family, his interaction and engagement with the Baha'i community made him feel part of the community and was not for the purposes of strengthening his claims for refugee. On the applicant's evidence, it is clear that he has not converted to the Baha'i faith. While he claims that he has been studying and learning about the faith, he has not provided any evidence, such as letters of support from the Baha'i community, in support of his assertions that he is studying the religion with a view to convert. The applicant's evidence is that he has not informed his family in Iran about his interest in the Baha'i faith nor can confirm that the authorities or anyone in Iran are aware of his activities or engagement with the Baha'i community in Adelaide. The applicant has been residing in Australia since 2013 and claims to have engaged with the Baha'i community some years ago. While he claims that he continues to research and study the religion, at the SHEV interview he indicated that he was busy establishing a business and that it had been a year since he last attended any events. On the evidence before me, I am not satisfied that the applicant has converted to the Baha'i faith or that he has a genuine intention to convert or practice the religion. While I accept that he has engaged with the Baha'i community in Adelaide, the information before me does not support the applicant's assertion that the Iranian authorities engage spies to monitor the activities of its citizens abroad. I am not satisfied that the authorities in Iran have became aware of the applicant's association and engagement with the Baha'i community in Adelaide. I consider the chances of the applicant facing any harm at the hands of the authorities, rejected by his family for this reason, or considered an apostate to be no more than remote.

15. As can be seen, the Authority dealt with the applicant’s claim that he had studied the Bahá'í faith. In the third sentence, the Authority expressly stated that, on the applicant’s evidence, it is clear that he had not converted to the Bahá'í faith. The Authority accepted that the applicant engaged with the Bahá'í community in Australia but did not find that the applicant was a member of the Bahá'í faith.

16. The next point made by the applicant was that the Authority said that the applicant’s mother had died when, in fact, she is still alive. The point about the applicant’s mother being alive or dead related to the applicant’s mental health. Under the heading, Mental Health, the Authority said at paragraph 17 of its reasons for decision that the applicant claimed in his Safe Haven Enterprise Visa interview that his mother had died, and he had found this difficult. However, the Authority noted in paragraphs 17 to 19 of its reasons for decision that the applicant had provided no evidence of mental ill health. For that reason, the Authority found that the applicant’s assertions, including that his mother had died, could not have affected consideration of his claims or consideration of whether he needed or could afford treatment in Iran.

17. The applicant’s next point is that the Authority said he was part of the Al-Ahwazi group when he only said that his friend was part of the Al-Ahwazi group. This argument also misunderstands the Authority’s reasons for decision. The Authority did not say that the applicant was part of the Al-Ahwazi group.  At paragraphs 8 to 14 of the Authority’s reasons for decision, the Authority considered the applicant’s claim that he might be imputed with pro‑Al-Ahwazi beliefs because of his association with a certain person.

18. At paragraph 13 of the Authority’s reasons for decision, the Authority noted that the applicant did not claim to be in, or interested in, any Al-Ahwazi separatists groups. The Authority did not consider that the applicant was part of the Al-Ahwazi group. 

19. The applicant’s next point was that he said that he had been under stress because he was not able to attend his sister’s wedding in Iran. The Authority did not mention the sister’s wedding in its reasons for decision. However, in view of the Authority’s unchallenged findings that, in the absence of expert evidence about the applicant’s mental health, it could have no impact on the decision, any stress suffered by the applicant about his sister’s wedding, and the Authority’s failure to mention it, are immaterial.

20. The applicant’s next point is that he said that the tape recording that he was provided of his 2013 interview had been tampered with. The applicant did not provide any evidence to support this very serious allegation. In any event, there is nothing in the Authority’s reasons for decision to indicate that it relied in any way on the 2013 interview. The Authority noted in paragraph 22 of its reasons for decision that the recording of the SHEV interview shows that the delegate did not refer to the 2013 interview, and that the delegate did not ask about any discrepancies or dates that the applicant had provided in the 2013 interview. Consequently, any problems with the 2013 tape recording are immaterial.

21. The applicant’s next point was about whether he had said previously that he was detained for one day, or one day and one night, or two days. The Authority addressed this issue in paragraph 36 of its reasons for decision. The Authority said while the applicant’s SHEV statement refers to the group having been detained for two days, at the SHEV interview the applicant stated that they were taken to the security office where the police came, but they were released that night.

22. The applicant sought to explain this discrepancy to the Authority. The Authority assessed the matter and concluded that it was more likely that the applicant was released on the night of the first day. These findings were not challenged as such, and were open on the evidence. 

23. The applicant’s next point was that he did not understand why the Authority did not accept that his father was taken to the police station. The Authority dealt with this matter at paragraph 39 of its reasons for decision. The Authority noted that, on the applicant’s own evidence, his father had not been involved in political activities since university. The Authority also noted that there was no evidence that the applicant’s father had come to the attention of the authorities at any time.

24. The Authority found it implausible that there was any link between the applicant’s strike activities and his father’s student activities from decades previously. In these circumstances the Authority did not accept that the authorities took the applicant’s father for questioning. That finding was open on the evidence.

25. Ground 1 is not made out.

    GROUND 2:

26. The second ground in the application is:

    the statements were not accurate to what I was complaining.

27. The applicant’s first point under this ground was that the Authority failed to consider he had problems in two different cities, being Abadan and Kerman, with security and the police and that is why he sought refugee status. However, these claims were set out in summary in paragraph 24 of the Authority’s reasons for decision and were discussed in detail in paragraphs 30 to 41 of the Authority’s reasons for decision. It is clear that the Authority did understand that the applicant’s claims concerned events in two different cities.

28. The applicant then said that these matters about the problems arising in two different cities were not discussed at interview. However, the reasons for decision of the Authority show at paragraphs 33 to 36 that these issues were discussed at the Safe Haven Enterprise Visa interview.

29. The applicant then said that the Authority had misunderstood his claims in that he had said he was not in the union but was just protecting his rights when he participated in strike activity. On this topic, the Authority said at paragraph 35 of its reasons for decisions the following:

    In response to the delegate's finding that the applicant was a union member and not a leader, it is submitted that the applicant was a strike leader, as he was one of a few people who was arrested by the company security in Abadan and that his evidence that he was a 'kind of a spokesman', was representing everyone and the he organised the strikers to meet at a particular time and place, indicates that he was a leader. In his 2021 statement, the applicant indicates that as in Iran unions were not officially registered, they did not have a name, there was no union fees or membership, and that unions formed spontaneously and that there were only informal leaders, like the applicant. He states that he referred to trade union in his evidence loosely to describe the employees coming together to strike about pay and that he was arrested by company security (Herasat) because he was part of the leadership group of 20 or so employees in Abadan.

30. It is clear that the Authority was aware that the delegate found that the applicant was a union member. The Authority was also clearly aware that the applicant claimed that he was not a union member but that he had been an informal leader of strike action.

31. The next point is that the applicant said the Authority did not accept that he had studied Bahá'í for two years. The Authority dealt with this point at paragraph 46 of its reasons for decision:

    I accept that the applicant befriended and engaged with the Baha'i community and may have attended some Baha'i community events after his arrival in Australia. I also accept that, after arrival in Australia without his family, his interaction and engagement with the Baha'i community made him feel part of the community and was not for the purposes of strengthening his claims for refugee. On the applicant's evidence, it is clear that he has not converted to the Baha'i faith. While he claims that he has been studying and learning about the faith, he has not provided any evidence, such as letters of support from the Baha'i community, in support of his assertions that he is studying the religion with a view to convert. The applicant's evidence is that he has not informed his family in Iran about his interest in the Baha'i faith nor can confirm that the authorities or anyone in Iran are aware of his activities or engagement with the Baha'i community in Adelaide. The applicant has been residing in Australia since 2013 and claims to have engaged with the Baha'i community some years ago. While he claims that he continues to research and study the religion, at the SHEV interview he indicated that he was busy establishing a business and that it had been a year since he last attended any events. On the evidence before me, I am not satisfied that the applicant has converted to the Baha'i faith or that he has a genuine intention to convert or practice the religion. While I accept that he has engaged with the Baha'i community in Adelaide, the information before me does not support the applicant's assertion that the Iranian authorities engage spies to monitor the activities of its citizens abroad. I am not satisfied that the authorities in Iran have became aware of the applicant's association and engagement with the Baha'i community in Adelaide. I consider the chances of the applicant facing any harm at the hands of the authorities, rejected by his family for this reason, or considered an apostate to be no more than remote.

1. The Authority expressly accepted that the applicant had engaged with the Bahá'í community in Adelaide but did not accept that the applicant had converted to the Bahá'í faith. More importantly, the Authority did not accept that the authorities in Iran were aware of the applicant’s association and engagement with the Bahá'í community in Adelaide and did not accept that the applicant faced a risk of harm in Iran for that reason. Those findings were open on the evidence.

2. Ground 2 is not made out.

   GROUND 3:

3. Ground 3 in the application is as follows:

   Because I don’t speak English well, my answered miss interpreted [sic].

4. At the hearing before the court today, the applicant confirmed that he did not wish to point to any errors in interpretation other than those he had mentioned before Judge Davis. Before Judge Davis, the applicant gave one example of misinterpretation. It was the one day, one night issue. As already mentioned, the Authority dealt with this matter at paragraph 36 of its reasons for decision. The Authority noted the discrepancy between the applicant’s SHEV statement and the SHEV interview. The Authority noted that the applicant had sought to explain that discrepancy, saying the incident with the police was a long time ago. There does not seem to be any misinterpretation issue in this case. The discrepancy was brought to the applicant’s attention and he explained it as best he could. The Authority made relevant findings that were open to it.

5. Ground 3 is not made out.

   additional matterS

6. In reply this morning, the applicant said that when he left Iran, he did not bring documents with him. That may be so. However, it does not point to any jurisdictional error on the part of the Authority.

7. In addition to the points raised by the applicant, the Minister, as a model litigant, brought to the court’s attention one other potential point. The Minister noted that the Authority as first constituted had received information from the Secretary of the Minister’s Department that may have been prejudicial to the applicant.

8. The Minister also noted that, under s.473EA(4) of the Act, the Authority is obliged to return documents provided by the Secretary to the department at the conclusion of a review. Based on the presumption of regularity, it seems likely that that occurred in the present case.

9. When the matter was remitted to the Authority for reconsideration, the Secretary apparently formed the view that the material that had previously been regarded as relevant and consisted of material that was prejudicial to the applicant was not relevant. The material in the court book shows that the Secretary did not provide that prejudicial material or possibly prejudicial material to the Authority as it was constituted for the reconsideration of the review of the delegate’s decision.

10. That approach conformed to a suggestion made by Nettle and Gordon JJ in CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; (2019) 375 ALR 47; [2019] HCA 50 at [106] and by Edelman J at [143]. Consequently, the possibly prejudicial information was not before the Authority as it was constituted for the second time. Therefore, it is not relevant in this review.

11. I have looked at the Authority’s reasons for decision and parts of the court book. I have been unable to find any jurisdictional error in the Authority’s reasons for decision or decision-making process.

    CONCLUSION:

12. Consequently, the application will be dismissed.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley.

Associate:

Dated:       5 July 2022